Julien v. Raemisch et al

Filing 9

ORDER dismissing this action with prejudice by Judge Lewis T. Babcock on 12/2/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01835-GPG
DYWAND DAYTRON JULIEN,
Plaintiff,
v.
RICK RAEMISCH,
BRANDON SHAFFER,
MARY CARLSON,
ANGELA BRUBAKER,
JASON LENGERICH,
ALISON MORGAN,
RAOUL MAZE,
DANIEL BARONI,
SIMON DENWALT, and
R.E. HAZEN,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Dywand Daytron Julien, was in the custody of the Colorado Department
of Corrections (CDOC) at the Buena Vista Correctional Facility when he initiated this
action by filing, pro se, a Prisoner Complaint asserting a violation of his constitutional
rights pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983.
On September 22, 2015, Magistrate Judge Gordon P. Gallagher reviewed the
Complaint and determined that it was deficient for several reasons. Specifically,
Magistrate Judge Gallagher found that Plaintiff did not comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure; improperly sought a
judgment for damages against the individual Defendants, sued in their official

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capacities; failed to allege the personal participation of each named Defendant in an
alleged constitutional deprivation; and failed to state an arguable due process claim.
Magistrate Judge Gallagher ordered Plaintiff to file an amended complaint within 30
days of the September 22 Order. Plaintiff did not file an amended complaint within the
time allowed.
Plaintiff has been granted leave to proceed under the federal in forma pauperis
statute, 28 U.S.C. § 1915. Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss the
action if Plaintiff’s claims are frivolous or malicious. A legally frivolous claim is one in
which the plaintiff asserts the violation of a legal interest that clearly does not exist or
asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S.
319, 327-28 (1989). Subsection (e)(2)(B)(iii) of § 1915 requires a court to dismiss at
any time an action that seeks monetary relief against a defendant who is immune from
such relief.
The Court must construe the original Complaint liberally because Plaintiff is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, this action will be dismissed pursuant to § 1915(e)(2)(B)(iii).
I. The Complaint
In the Complaint, Plaintiff asserts the following four claims:
(1) CDOC – the Adult Division of Parole and prison officials have a custom and
policy arbitrarily enacted by and through community corrections and
community based therapeutic programs that violated Plaintiff’s protected
liberty interest without due process of law and equal protection for Plaintiff
who successfully completed the community based therapeutic community
program at Alano House – rights protected under the First and Fourteenth

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Amendments of the United States Constitution and mandated under C.R.S.
Section 18-1.3-301(1)(j) – by failing to award achievement earned time credit
pursuant C.R.S Section 17-22.5-405(9)(a) for the completions by Plaintiff in
the Community Correction Program in the same manner as credits for
completions in a Department of Corrections facility to offenders mandatory
release date/sentence for successful completion of programs.
(2) CDOC has a custom and policy arbitrary enacted by and through prison
officials and at the Buena Vista Minimum Center that violated Plaintiffs
protected liberty interest without due process of law – rights protected under
the First and Fourteenth Amendments of the United States Constitution –
once CDOC was required to timely refer Plaintiff to Community Corrections
when Plaintiffs parole eligibility date had been established; said actions by
Defendants are in violation of Plaintiff’s aforementioned Constitutional rights
and 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3).
(3) CDOC has a custom and policy enacted, in concert, through the Denver
Diagnostic Receiving Center and Diagnostic Programmers, Case
Management at the Buena Vista Correctional Complex and Minimum Center,
the Colorado State Board of Parole and the Division of Adult Parole, that
violated Plaintiff’s protected Liberty Interest and right to procedural Due
Process by failing to conduct a hearing as to the disposition of offenders
parole in criminal case 10CR2715 mandated under Colorado Revised Statute
17-2-103(9)(b)(I); 17-2-103(11)(b)(I) and 17-2-103)13(c) and as a result: (1)
Plaintiff was deprived of his protected liberty interest created under C.R.S. §
17-22.5-202 and CDOC Administrative Regulation 200-01 for Plaintiff’s
entitlement to monetary consideration for departure and (2) his constitutional
rights protected under the First and Fourteenth Amendments of the United
States Constitution; 42 U.S.C. Section 1983 and 42 U.S.C. Section 1985(3).
(4) CDOC has a custom and policy enacted, in concert through the Colorado
State Board of Parole and the Division of Adult Parole, that violates a
protected liberty interest and Due Process for incoming restricted inspection
mail created and identified under CDOC Administrative Regulation 30038(IV)(B)(1)(f) by allowing offender mail to be sent and censored via interdepartment mail; said actions by Defendant’s are in violation of Plaintiff’s
constitutional rights protected under the First and Fourteenth Amendments of
the United States Constitution; 42 U.S.C. Section 1983 and 42 U.S.C. Section
1985(3).
(ECF No. 1 at 8-13).
As relief, Plaintiff seeks compensatory and nominal damages as well as punitive
damages. (Id. at 15).

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II. Analysis
Plaintiff sues the individual Defendants in their official capacities. Therefore, the
claims, which are asserted against State employees, are construed as against the State
of Colorado. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (stating that claims asserted
against government officials in their official capacities are construed against the
governmental entity). The State and its officers or agents sued in their official
capacities are entitled to Eleventh Amendment immunity, absent a waiver. See
generally Meade v. Grubbs, 841 F.2d 1512, 1525 (10th Cir. 1988) (the immunity
conferred by the Eleventh Amendment extends to the state and its instrumentalities);
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03 (1984) (Eleventh
Amendment immunity applies to state officials sued in their official capacities).
Congress did not abrogate Eleventh Amendment immunity through § 1983, see Quern
v. Jordan, 440 U.S. 332, 345 (1979), nor has the State of Colorado or the CDOC
expressly waived its sovereign immunity. See Griess v. Colorado, 841 F.2d 1042,
1044-45 (10th Cir.1988). As a result, Plaintiff cannot obtain a judgment for damages
against the individual Defendants, sued in their official capacities. Because Plaintiff only
seeks money damages against the individual Defendants, sued in their official
capacities, the claims are barred by Eleventh Amendment immunity.
Moreover, Plaintiff’s factual allegations fail to demonstrate the personal
involvement of each named Defendant. Plaintiff was warned in the September 22 Order
that personal participation is an essential element in a civil rights action. See Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); Kentucky v. Graham, 473 U.S. 159,
166 (1985). There must be an affirmative link between the alleged constitutional

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violation and each defendant’s participation, control or direction, or failure to supervise.
See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (citations and quotations
omitted); Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010). A
supervisor can only be held liable for his own deliberate intentional acts. See Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009); Serna v. Colo. Dep’t of Corrections, 455 F.3d 1146,
1151 (10th Cir. 2006) (“Supervisors are only liable under § 1983 for their own culpable
involvement in the violation of a person's constitutional rights.”).
In the Complaint, Plaintiff alleges that the Defendants have enacted “a custom
and policy” that violates Plaintiff’s constitutional rights. Plaintiff, however, does not
allege facts to show that the Defendants Raemisch, Shaffer, Carlson, and Morgan were
personally involved in the alleged constitutional violations. Instead, Plaintiff seeks to
hold these Defendants liable based on their supervisory status, which is improper under
§ 1983.
Finally, Plaintiff’s allegations fail to state an arguable due process claim because
he fails to show that he was deprived of a constitutionally- protected liberty interest. See
Chambers v. Colorado Dep't of Corr., 205 F.3d 1237, 1242 (10th Cir. 2000); Gwinn v.
Awmiller, 354 F.3d 1211, 1217-24 (10th Cir. 2004). Plaintiff was warned in the
September 22 Order that he has no right to placement in a community corrections
facility under federal or state law, see People v. Wilhite, 817 P.2d 1017, 1021(Colo.
1991), cert. denied, Wilhite v. Colorado, 502 U.S. 1103 (1991), and that he does not
have a constitutionally protected liberty interest in earned-time credits, see Fogle v.
Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006). See also C.R.S. § 17-22.5-302(4) (for
inmates sentenced for crimes committed on or after July 1, 1985, the CDOC has

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discretion to “withhold” or “withdraw” any “earned time deduction[s].”). Absent
allegations demonstrating a constitutionally protected liberty interest arising under
Colorado law, Plaintiff’s due process claims also are subject to dismissal.
Accordingly, it is
ORDERED that Plaintiff’s Complaint (ECF No. 1) and this action are DISMISSED
with prejudice pursuant to § 1915(e)(2)(B)(iii).
DATED December 2, 2015, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock__________________
LEWIS T. BABCOCK, Senior Judge
United States District Court

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